Higgins v. Whitmore. June 11, 1914. [82 S. E. 180.]

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448 20 VIRGINIA LAW register. [ Oct.,

the contract. Now, to say that the association had the power
to grant the privilege to run wheels which were not in violation
of law, to receive the money for the privilege, and then to ab-
rogate the privilege arbitrarily when no law had been violated,
and nothing done in contravention of good morals, or which
could be reasonably objected to by the association, is utterly
repugnant to every sense of justice, and cannot receive our ap-
probation.

Assignment of error No. 6 is to the refusal of the court to
give instruction No. 5b, the object of which was to tell the jury,
by implication at least, that the resolution of the association of
October 10, 1911, constituted a new contract — a subject which
we have already sufficiently considered.

[4] We think the court rightly refused instruction No. 6b,
which refers to the measure of damages, under the facts of this
case, and upon the authority of Consumers' Ice Co. v. Jennings,
100 Va. 719, 42 S. E. 879.

Assignment of error No. 8 is the refusal of the court to grant
instruction No. 8b. What we have already said sufficiently dis-
poses of this assignment of error.

We are of opinion that there was no error in the admission
of testimony, or in the instructions granted and refused; that,
considered as upon a demurrer, the evidence is sufficient to sup-
port the verdict; and that upon the whole case the judgment
should be affirmed.

Affirmed.

HlGGINS V. WHITMORE.
June 11, 1914.
[82 S. E. 180.]

1. Appeal and Error (§ 1005*) — Review — Questions of Fact. —

Where, in an employee's action for injuries, the evidence as to neg-
ligence and contributory negligence was conflicting, and those ques-
tions were fairly submitted to the jury, its verdict for plaintiff, ap-
proved by the trial court, could not be disturbed by an appellate court.
[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§
3860-3876, 3948-3950; Dec. Dig. § 1005.*J

2. Trial (§ 228*) — Instructions — Cure by Other Instructions. — The
rule that an instruction which purports to cover the entire case and
calls for a verdict must be predicated upon all the material facts which
the evidence proves or tends to prove is not violated when an in-
complete statement of the facts in one instruction is so supplemented
by the additional statement in another instruction as to include in

1914. ] HIGGINS V. WHITMORE. 449

both a complete statement of the case, enabling the court to see that
the jury could not have been misled by the incomplete instruction,
since the instructions are to be read and considered as a whole.

[Ed. Note.— For other cases, see Trial, Cent. Dig. §§ 59-512, 526;
Dec. Dig. § 228.*]

3. Trial (§ 296*) — Instructions — Cure by Other Instructions. — In an
employee's action for injuries, due to the breaking of a scaffold, an
instruction ignoring defendant's theory that plaintiff, at the time of
the accident, was in charge of the work as foreman, clothed with all
the authority of the employer during the employer's absence, and
ought to have remedied the defect in the scaffold, was not erroneous,
where, in another instruction, the jury were specifically instructed
upon that phase of the case and told that, if they believed from the
evidence the facts upon which the instruction was predicated, plain-
tiff could not recover, since the object of instructions is to enlighten
the minds of the jury on the law of the particular case, and. where
this end has been accomplished, it is immaterial whether it was done
by one instruction or by more than one.

[Ed. Note.— For other cases, see Trial, Cent. Dig. §§ 705-713, 715,
716, 718; Dec. Dig. § 296.*]

Error to Circuit Court, Norfolk County.

Action by Joseph W. Whitmore against Alpine G. Higgins.
Judgment for plaintiff, and defendant brings error. Affirmed.
The court instructed the jury as follows :

Plaintiff's Instructions.

"The court further instructs the jury that the burden of prov-
ing the defendant guilty of negligence rests upon the plaintiff,
but, if the defendant seeks to relieve himself of liability by rea-
son of the plaintiff having been guilty of contributory negli-
gence, the burden of proving such contributory negligence rests
upon the defendant, which proof must be by a preponderance
of the evidence, which may be proven by the plaintiff's own evi-
dence or other facts and circumstances of the case."

No. 2: "The court further instructs the jury that if they
believe from the evidence that the plaintiff was an employee of
the defendant, and that the defendant was building a house
near Glenwood Park, in Norfolk county, Va., and built the
stage or scaffold around the back of the house out of unsound
and decayed lumber without exercising ordinary care to dis-
cover said unsound and decayed condition, and that the said
defendant directed the plaintiff, in the course of his work, to
go upon the said scaffold, and the plaintiff, relying upon the
skill and experience of the defendant, and using the ordinary
care that an ordinary prudent man would have used under the

—4

450 20 VIRGINIA LAW register. [ Oct.,

same circumstances, was, by the breaking of the decayed and
unsound lumber composing the said scaffold, caused to fall, and
injured, then the jury must find for the plaintiff, and in finding
for the plaintiff they may take into consideration the time lost
from work by the plaintiff, his incapacity to continue his voca-
tion, until recovered from his injury, his mental and physical
suffering, and may assess the damages as they deem proper and
jUst, not to exceed the sum of $5,000."

No. 5: "The court instructs the jury that it is a fundamental
principle of law that the defendant owes to the plaintiff the
duty to use ordinary care and diligence to provide a reasonable
sound and safe place to work, and was equally bound to inspect
and examine such place or material from time to time, and to
use ordinary care and skill to discover and repair defects therein
and not to use defective material for the construction of places
upon which the plaintiff, at the orders and instance of the said
defendant, should have to work. If, therefore, the jury be-
lieves from the evidence that the boards and planks out of which
the scaffold and stage erected in the back part of the house in
question, for the purpose of the plaintiff and other employees
of the said defendant standing and working upon in the usual
and customary course of their business, were rotten and de-
cayed, and the said defendant knew, or had been advised, or
ought to have known by the exercise of ordinary care, that the
planks and boards aforesaid were rotten and decayed, and that
the plaintiff, using such care and prudence as an ordinary pru-
dent man would have exercised under the same circumstances,
at the special instance and request of the said defendant went
upon the aforesaid scaffold, made as aforesaid, and was injured
because of the breaking of the said decayed and rotten planks,
then the jury must find for the plaintiff."

Defendant's Instructions.

No. 1 : "The court instructs the jury that the law does not
constitute the employer an insurer of the safety of his employee,
but he is only required to use such care as ordinarily prudent
persons use under the circumstances. On the other hand, the
employee assumes all the ordinary risks incident to the service
in which he is engaged, including all risks from causes which
are either known to him, or which, by the exercise of ordinary
care, he would have known, and he must exercise ordinary care
and caution for his own safety while engaged in the employer's
service, and if the jury believes from the evidence that the
plaintiff at the time of the accident either knew, or by the exer-
cise of ordinary care might have known, that the scaffold was
so unsafe that a reasonably prudent man would not use the

1914. ] HIGGINS V . WHIT MORS. 451

same, and went upon the same, whereby the injury complained
of resulted, he was guilty of contributory negligence in so do-
ing, and cannot recover in this case, even though the defendant
may have been guilty of the negligence charged in the declara-
tion."

No. 2: "The court instructs the jury that negligence cannot
be inferred from the mere happening of the accident, but the
burden is upon the plaintiff to prove by a clear preponderance
of the evidence that the defendant was negligent in the manner
alleged in the declaration, and that the negligence charged in
the declaration was the direct and proximate cause of the plain-
tiff's injury, and, if the preponderance of the evidence does not
establish these facts, they should find for the defendant."

No. 4: "The court instructs the jury that if they believe
from the evidence that the plaintiff, in the absence of defendant,
was the foreman of the work of the defendant, and had charge
of the same in the defendant's absence, and as such had the
direction of the work, then it became and was his duty to exer-
cise ordinary care to see that the scaffold was reasonably safe
and that the planks therein were not defective, and, if under
these circumstances a defective plank was upon the scaffold
with his knowledge, he cannot recover in this case."

No. 5 : "The court instructs the jury that, no matter what
negligence, if any, the defendant may have been guilty of, the
plaintiff is not entitled to recover in this action unless the de-
fendant was guilty of the identical negligence charged in the
declaration, and that that negligence was the proximate cause
of the accident, and, unless they believe from the evidence that
the particular negligence charged in the declaration was the
proximate cause of the accident, they must find for the defend-
ant."

"The court instructs the jury if they believe from the evi-
dence that the defendant Higgins, in Whitmore's presence, in
order to insure the strength of the scaffold, placed a third board
upon it, and that afterward the board which was placed thereon
was removed, thereby weakening the scaffold, and afterwards
the plaintiff, in the defendant's absence, went upon the stage
and scaffold, in that condition, with knowledge of the fact (if
they believe from the evidence that it was a fact) that it was
weakened by said removal, then the plaintiff assumed the risk
of the danger caused by the removal of the plank which Hig-
gins had placed upon it and of the weakened condition of the
scaffold occasioned thereby, and if, as the result thereof, the
scaffold broke and plaintiff was injured, the defendant is not
liable in this case."

No. 7: "If the jury believe from the evidence that the lum-

452 20 VIRGINIA LAW REGISTER. [ Oct.,

ber out of which the scaffold was constructed, and that the plank
which broke with the plaintiff, were so obviously unsound that
a reasonably prudent person would decline to use the same, and
that the plaintiff, under these circumstances, went upon the
same and was injured as alleged in the declaration, he cannot
recover in this case.

"If, on the other hand, the jury believe from the evidence
that the defective condition of the board, if it was defective,
was not apparent and could not have been discovered by a per-
son exercising ordinary care, then there can be no negligence
charged against the defendant, and the plaintiff cannot recover
in this case."

No. 8: "The court instructs the jury that where a servant
has been assigned and directed to do certain work at a particular
place, and voluntarily leaves his post of duty and enters upon
other work which he has not been directed to do, and is injured
in consequences thereof, he has no remedy against his employ-
ers, and if the jury believe from the evidence that the plaintiff,
Whitmore, was instructed by his employer to cut out and con-
struct rafters upon the ground to be used in the building which
was being constructed, and that while his employer was away
he voluntarily, and contrary to the directions from the defend-
ant, left the work which he had been assigned to do and went
upon the scaffold and was injured as alleged in the declaration,
he cannot recover in this case."

Jeffries, Wolcott, Wolcott & Lankford and /. McBride
Webb, all of Norfolk, for plaintiff in error.

0. L. Shewmake, of Surry, Foreman & Bradford, of Nor-
folk, for defendant in error.

Whittle, J. The plaintiff in error, Higgins, who was an
experienced carpenter, employed the defendant in error, Whit-
more, along with other carpenters and laborers to assist him
in the construction of a dwelling house for himself in the sec-
tion of Norfolk county, known as Glenwood Park. Higgins,
with the assistance of two laborers, personally erected a scaf-
fold for the use of his employees in weather boarding and other
work on the building. Whitmore, while engaged in his work,
stepped on the staging of the scaffold, and by the breaking of
a partially rotten board fell to the ground and sustained injuries
for which the jury awarded him $400 damages against his em-
ployer. The judgment sustaining that verdict is now before us
for review.

The assignments of error are:

(1) That the court erred in overruling the motion of the
defendant to set aside the verdict as contrary to the law and
the evidence; and,

1914. ] HIGGINS V. WHITMORE. 453

(2) In giving two instructions at the request of plaintiff, and
in refusing to give one of nine instructions requested by the
defendant.

1. The conflict of evidence on the opposing theories of the
case advanced, respectively, by the plaintiff and defendant has
been set at rest by the verdict of the jury ; and, from the view-
point of a demurrer to the evidence, the evidence is quite suffi-
cient to sustain the verdict. The plaintiff and, his helper began
to build the scaffold, but they were stopped by the defendant
and put on other work, while he, assisted by two laborers,
erected the scaffold and in laying the staging used secondhand
boards, taken from a pile of lumber that had been used on the
board walks of Glenwood Park. The plaintiff called his at-
tention to the unsound condition of some of that material, but
was assured by the defendant that he was an experienced scaf-
fold builder and that the structure would be safe. Shortly be-
fore the accident the defendant discovered that the stage, or
floor of the scaffold, was limber and springy, and to remedy
that defect laid a third board on top of the two already in place.
On the evening before the accident he noticed that the added
plank had been removed ; yet he admits that he paid no attention
to that circumstance, and neither replaced the board nor ad-
vised Whitmore of the infirmity of the staging in its absence.
The plaintiff never saw the third board, and it was not where
the defendant says he put it when the accident happened.

In these circumstances, the plaintiff, in the prosecution of
his work, went on the scaffold, and, when he had reached a
point midway of the staging, stepped on the inside plank, 2x8
inches in dimension, which broke, and he fell to the ground and
was injured.

The defendant was employed by the manager of Glenwood
Park, and that service occupied about one-half of his time. On
the morning of the accident he was called away from work on
his building by the manager, and testifies that before leaving
he stopped the plaintiff from weather boarding and directed
him to stay on the ground and show NcDaniels (a new man)
how, and to help him to get out rafters for the roof ; and that
he left him in charge of the entire work as foreman during his
absence. This point is stressed to support the contention that
the plaintiff went on the scaffold in disobedience of orders, and
moreover that, as vice principal, the duty devolved upon him
to look after the safe condition of the scaffold.

[1] If the premise be correct under the circumstances (as to
which we need express no opinion), the fact is ignored that
there is a conflict in the testimony of the parties touching this
incident. The plaintiff explicitly testifies that on the morning

454 20 VIRGINIA LAW register. [ Oct.,

in question his orders were to take his helper and finish weather
boarding, and that he was also instructed to watch McDaniels,
who had only been employed on the job for a day or two. With-
out going further into details of the evidence, it is sufficient to
say that the question of the negligence of the defendant and
the contributory negligence of the plaintiff, upon conflicting
evidence, was fairly submitted to the jury, whose verdict in be-
half of the plaintiff was approved by the trial court. Upon
familiar principles, therefore, the verdict in such case cannot
be disturbed by an appellate court.

2. The grounds of objection to the instructions granted on
the request of the plaintiff are that they were without evidence
to support them, and that they call for a verdict on a given state
of facts and ignore the circumstance that the plaintiff was fore-
man in charge of the work with all the authority of the master
in the defendant's absence, and could have remedied the defect
in the staging, and in that view of the case was not entitled to
recover.

The instructions present the plaintiff's theories of the case,
which are in accordance with the finding of the jury, sustained
both by the trial court and this court, and that affords a suffi-
cient answer to the objection that they were without evidence
to support them.

[2] The second objection to the instruction undertakes to
bring the case within the influence of the recognized general
rule that an instruction which purports to cover the entire case
and calls for a verdict must "be predicated upon all the material
facts which the evidence * * * proves or tends to prove."
Wright v. Agelasto, 104 Va. 159, 51 S. E. 191 ; Southern R. Co.
v. Blanford, 105 Va. 373, 54 S. E. 1 ; Vaughan M. Co. v. Stan-
ton Co., 106 Va. 445, 56 S. E. 140; American Locomotive Co.
v. Whitlock, 109 Va. 238, 63 S. E. 991.

But the rule is not violated when an incomplete statement in
one instruction is so supplemented by an additional statement
in another instruction as to include in both a complete statement
of the case. Instructions are to be read and considered as a
whole, and an incomplete statement in one instruction may
be cured by a supplemental statement in another, if, when both
are read together, the court can see that the jury could not have
been misled by the incomplete instruction. Washington R. Co.
v. Quayle, 95 Va. 741, 30 S. E. 391 ; Sun Life Assurance Co.
v. Bailey, 101 Va. 443, 44 S. E. 692. For an instructive discus-
sion of the subject of "Instructions," see Burks' PI. & Pr. Chap-
ter 35, p. 499, et seq.

[3] Complaint is also made that the instructions for the plain-
tiff ignore the theory of the defendant that the former, at the

1914. ] HIGGINS V. WHITMORE. 455

time of the accident, was foreman in charge of the work, clothed
with all the authority of the master during his absence, and
ought to have remedied the defect in the staging. The jury,
in another instruction, were specially instructed upon that
phase of the case, and were told that, if they believed from the
evidence the facts upon which the instruction was predicated,
the plaintiff could not recover. Indeed, the court, on request of
the defendant, gave eight instructions submitting every possi-
ble theory of the ease from his standpoint, and each told the
jury that, if they believed from the evidence the facts recited
therein, either the plaintiff could not recover or else they must
find for the defendant. It were well to be borne in mind that
the real object of instructions at last is to enlighten the minds
of the jury on the law of the particular case; and where the
court can see that that end has been accomplished, and the law
of the case fairly submitted to the jury, it would be beside the
mark to stop to inquire whether it was done by one instruction
or by more than one.

The court correctly refused the ninth instruction because
there was no evidence to support it.

Upon the whole case, we find no reversible error in the judg-
ment complained of, and it must be affirmed.

Affirmed.